Ewing v. Evans

SUSAN EWING, APPELLEE, v. JOSEPH EVANS, APPELLANT.

No. A-18-083.

NEBRASKA COURT OF APPEALS

May 7, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Reversed and remanded with directions.

Kevin Ruser and Ryan P. Sullivan, of University of Nebraska Civil Clinical Law Program, and Sidney Huss, Allison Derr, Liz Flynn, Nicholas McGrath, and James Hannon, Senior Certified Law Students.

DeAnn C. Stover for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

MOORE, Chief Judge.

INTRODUCTION

Joseph Evans appeals from the order of the district court for Lancaster County, which denied his complaint for modification of child support. For the reasons that follow, we reverse and remand with directions.

BACKGROUND

Joseph and Susan Ewing are the parents of a son born in May 2013. Susan's relationship with Joseph ended in February 2014. Joseph also has an older daughter with another woman. Joseph married a third woman in February 2016, and they remained married at the time of trial in this case.

At some point, Susan filed a paternity action against Joseph, seeking custody of their son and child support. A copy of that complaint is not included in our record.

On January 23, 2015, prior to the resolution of Susan's complaint, Joseph suffered injuries in a motor vehicle accident while working for the Nebraska Army National Guard. Specifically, Joseph suffered a traumatic brain injury with bleeding on the brain, several facial lacerations, and loss of feeling on one side of his face. He also had a bruised chest cavity, burst compression fracture in his spine at the L2 level, and nerve damage in his hip/leg area, as well as the onset of post-traumatic stress disorder (PTSD), and he was diagnosed with an anxiety disorder.

On March 26, 2015, the district court entered an order, ruling on Susan's complaint. The court adopted the parties' joint stipulation. A copy of the stipulation has not been included in our record on appeal. The court found that Susan was the natural mother and Joseph the natural father of the parties' son, awarded legal and physical custody of the child to Susan, and ordered Joseph to pay child support in the amount of $557 per month beginning April 1, 2015. The attached child support worksheet attributed total monthly income of $2,367 to Susan and $4,400 to Joseph, and Joseph's exemptions included $519 in child support previously ordered for other children. The court also ordered Joseph to pay 50 percent of employment-related childcare expenses incurred for his child with Susan. Joseph was to provide medical insurance for the child if available, with Susan paying the first $480 per calendar year of unreimbursed expenses and the parties each paying one-half thereafter. If medical insurance was not available through Joseph's employment or if it was cheaper to insure the child through Susan's employment, the parties were to split the cost to insure their son and all unreimbursed medical expenses.

On February 26, 2016, Joseph filed a complaint for modification, seeking to modify his child support, medical expense, and childcare obligations with respect to his son with Susan.

Trial on Joseph's complaint was held before the district court on August 25, 2017. The court heard testimony from Joseph, his wife, his friend, Susan, and his daughter's mother, and received various exhibits, including the deposition testimony of Joseph's doctor and Joseph's proposed child support worksheets.

Prior to the 2015 accident, Joseph was employed by the Nebraska Army National Guard as an Active Guard Reserve soldier, specifically, he was "the automation [noncommissioned officer] for the State of Nebraska for the joint force headquarters division of recruiting and retention." He testified that it was a physically demanding job due to military requirements that he meet certain standards for physical tasks such as pushups, sit-ups, running, and lifting. Joseph was in charge of other soldiers and his job required certification "to run secure systems for the military." His annual salary as of March 26, 2015, was approximately $30,000. Joseph returned to work for a few days following his accident, but he was thereafter placed on convalescent leave, during which time he continued to receive his salary. He was officially discharged from the National Guard in March 2016. With respect to his discharge, Joseph testified that a medical board found him unfit to continue to be a soldier.

Joseph was not employed at the time of trial, testifying that he was unable to find employment due to the injuries he suffered from the 2015 accident. After his accident, Joseph had part-time employment as a pizza driver in the summer of 2015. Joseph "threw [his] back out on a particularly difficult night" while working there and was unable to work for 3 days due to pain,after which the pizza establishment terminated his employment according to company policy. After that, Joseph tried working with the vocational rehabilitation office during the summer of 2015 to find a job that would be able to accommodate his restrictions, but he testified that "they weren't able to really find anything" for him. He indicated that he did apply for jobs recommended by the office, specifically jobs with an "IT firm that does secure banking," a telemarketing company, and a job with a public school because he "was certified for secure communications," but that "[n]o one was really willing to give [him] a shot." He also vaguely remembered applying for a job with a property management company, which was unwilling to accommodate him. Joseph did not apply for any other jobs.

Joseph testified about his current symptoms from the injuries he sustained in the accident. According to Joseph, he has chronic back and hip pain; nerve damage in his left leg, running all the way down to his foot; and some problems with hearing, tinnitus, bright lights, attention deficit, and memory, relating to the traumatic brain injury. He indicated that he experiences these symptoms "[a]ll the time." Joseph testified that his physical restrictions stemming from his injuries, provided by his doctors, were that he was not supposed to sit too long, walk too far, bend, crouch, kneel, work on a ladder, work overhead, or work bending over. He stated that if he sits or stands for an extended period, he experiences painful back spasms, which he described as "a throbbing, aching pain that starts in [his] lower back" that also runs down through his pelvic area to his leg. He indicated that he can sit or stand anywhere from 10 to 30 minutes before experiencing these pain symptoms and that he might be able to tolerate the pain for 30 minutes to an hour before he needs to take a break. He indicated that if he pushes his limits too far he "go[es] into a pain cycle," which basically immobilizes him for a "long time." We note that at one point during direct examination by his attorney, Joseph obtained permission from the district court to stand for the remainder of his questioning.

Joseph has received various treatments since the accident to address his injuries. At the time of trial, he was still doing aqua therapy, had just completed a round of physical therapy, and he continued to take various prescribed pain medications. He has received "cortical [sic] injections" in his spine, the most recent being in June prior to trial.

As a result of his traumatic brain injury, Joseph underwent speech therapy, has learned strategies to deal with memory issues, and has gone to counseling. Joseph indicated that his memory had improved a little bit since the accident, but he testified that he continued to experience weekly PTSD attacks, which could be triggered by things such as traffic sounds, and daily anxiety attacks, which might be triggered by "[h]igh intensity moments like [testifying at trial]." Joseph was still in counseling for his PTSD and anxiety, and he indicated that he planned to get tinnitus cancelling hearing aids to help him hear better. He also indicated that one of the medications he takes for back spasms helps a little with anxiety.

To address continued issues with memory and focus, Joseph writes everything down and uses a planner, but he testified that "it's a daily struggle." He indicated that the memory issues are with his short-term memory due to attention deficit, but that he is able to remember certain things better through repetition.

Joseph denied having issues with memory, anxiety, or PTSD prior to the accident, but he admitted that he previously hurt his back at one point.

Joseph testified about how he addresses his physical limitations in interacting with his children. According to Joseph, he is not as active a father as he used to be, and he is not able to do a lot of the things with his children that he would like to do. He occasionally breaks his restrictions to lift his son if necessary to address behavioral issues, but he tries not to lift him too much. If he breaks his lifting restrictions, he usually has to spend time reclining on the couch with a heating pad or "portable TENS unit," although he will usually try to "tough it through a weekend" with his children. Joseph admitted that he has participated in various activities with his children that lasted longer than 20 or 30 minutes and that he went camping the summer before trial. However, he testified that he is able to alternate between sitting and standing and sometimes uses a special chair during these activities and that while camping he slept on a "double thick air mattress." He indicated that he does experience pain while taking his children to various activities.

Joseph has received "VA disability benefits" since the time of his discharge from the National Guard, which were about $1,200 per month at the...